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Fundamental Concepts in Japanese and American Copyright Law

With the advent of the information age and the gradual breakdown of physical and legal barriers between nations, the differences in the type and scope of protection of information-based products from country to country becomes a matter of increasing concern to the legal community. The near dominance of Japan and the United States in computer and information-based products, especially computer software, and the already strong mutual economic dependence of the two countries will necessarily lead to steadily increasing exchange of intellectual property related to new technologies. Moreover, both countries have chosen copyright law as the primary vehicle for the legal protection of information-based products. Consequently, and understanding of the similarities and differences in copyright law between the two countries becomes a matter of increasing concern.

This article undertakes a study of the fundamental concepts of copyright protection under Japanese law and compares them to related concepts under the copyright law of the United States. Those concepts involve the nature of the works protected (including requirements for originality, creativity, and novelty), the scope of protection (including the idea/expression dichotomy and its relation to the nature of the work), proof of infringement, and fair use defenses. This article begins with an introduction to the relevant provisions of the Japanese Copyright Law, along with the corresponding provisions of the United States Copyright Act. Then it continues with an analysis of the reported cases in Japan that have interpreted the Japanese statutory provisions or similar provisions of earlier statutes. This case analysis is comprehensive, in that the authors have attempted to uncover all reported cases in Japan whose factual holdings are relevant to the fundamental conceptual topics under consideration. Where appropriate for comparative purposes, the article also discusses the case law in the United States.